B-157831, FEB. 16, 1966

B-157831, FEB. 16, 1966

TO MANEY AIRCRAFT PARTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTERS OF OCTOBER 11, NOVEMBER 10, AND DECEMBER 7, 1965, RESPECTIVELY, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MARIANNA AIR MOTIVE, INC. BY ROBINS AIR FORCE BASE, GEORGIA, FOR GROUP II ITEMS UNDER REQUEST FOR PROPOSALS (RFP) 01-601-66- 1502.

THE SUBJECT RFP WAS ISSUED ON JULY 12, 1965, AND CALLED FOR PROPOSALS ON FURNISHING ALL LABOR, FACILITIES, EQUIPMENT AND INDIRECT MATERIAL FOR REPAIRING 27 LINE ITEMS OF MISCELLANEOUS B-66 AND HU-16 AIRCRAFT. THE PROPOSALS RECEIVED FROM YOUR FIRM AND MARIANNA, AS EVALUATED IN ACCORDANCE WITH PART XII OF THE RFP, WERE AS FOLLOWS:

TABLE

TRANSPORTATION CASH

CHARGES DISCOUNT TOTAL

"MANEY AIRCRAFT

PARTS, INC. $78,997.95 $ 0.00 $ 0.00 $78,997.95

"MARIANNA

AIR MOTIVE

CORP. $73,596.40 $823.06 $36.78 $74,051.48 "

SINCE THE MARIANNA OFFER WAS $4,946.47 LESS THAN YOURS, AWARD OF A CONTRACT FOR THE GROUP II ITEMS WAS MADE TO IT ON SEPTEMBER 30, 1965, AFTER AN AFFIRMATIVE FACILITY CAPABILITY REPORT (FCR), AND IT IS CURRENTLY PERFORMING UNDER THE CONTRACT.

THE PRIMARY BASIS OF YOUR PROTEST IS THE CONTENTION THAT MARIANNA DID NOT HAVE THE TOOLS, TEST EQUIPMENT AND/OR ENVIRONMENTAL CONDITIONS TO PERFORM THE REPAIR WORK IN ACCORDANCE WITH TECHNICAL ORDER (T.O.) 1-1A-11 AT THE TIME THE PROPOSAL WAS SUBMITTED OR AT THE TIME THE FACILITY SURVEY WAS MADE, AS REQUIRED BY NOTE 1 OF THE RFP, WHICH PROVIDES AS FOLLOWS:

"THE SERVICES REQUIRED BY THIS SOLICITATION REQUIRE THAT THE CONTRACTOR POSSESS TOOLS, TEST EQUIPMENT AND/OR ENVIRONMENTAL CONDITIONS TO PERFORM THE WORK. THE AVAILABILITY OF THESE FACILITIES WILL BE SUBJECT TO VERIFICATION BY AIR FORCE PERSONNEL. NON AVAILABILITY OR UNSUITABLE FACILITIES MAY BE CAUSE FOR REJECTION OF PROPOSAL.'

SPECIFICALLY, YOU CLAIM THAT MARIANNA DID NOT HAVE FACILITIES, SUCH AS A FIREPROOF DOPE ROOM WITH HUMIDITY CONTROLS, EXPLOSION PROOF LIGHTING FIXTURES, AND FIREPROOF ACCESS/EGRESS DOORS, MEETING THE ENVIRONMENTAL CONDITIONS REQUIRED BY T.O. 1-1A-11. IF THIS IS CORRECT, IT IS YOUR CONTENTION THAT MARIANNA WAS NOT ELIGIBLE FOR AWARD OF THE CONTRACT, EVEN THOUGH THE FACILITY SURVEY MAY HAVE INDICATED THE REQUIREMENTS OF THE NOTE COULD BE COMPLIED WITH "IN TIME TO PERFORM THE IMPENDING CONTRACT.'

IN YOUR TELEGRAM OF OCTOBER 11, YOU ALSO MADE A GENERAL STATEMENT CONCERNING THE CONSIDERATION OF FREIGHT COSTS IN EVALUATION OF THE PROPOSALS, IMPLYING SOME IMPROPRIETY IN THAT RESPECT.

THE FINAL GROUNDS ALLEGED IN SUPPORT OF YOUR PROTEST AGAINST AN AWARD TO MARIANNA ARE THAT IT IS HAVING TROUBLE MEETING DELIVERY DATES ON CURRENT CONTRACTS AND THERE HAVE BEEN SOME UNSATISFACTORY REPORTS ON ITEMS IT HAS REPAIRED FOR THE AIR FORCE.

WITH REGARD TO YOUR STATEMENT CONCERNING THE CONSIDERATION OF FREIGHT COSTS IN EVALUATION OF THE PROPOSALS, AS INDICATED ABOVE MARIANNA'S PROPOSAL WAS $4,946.47 LOWER THAN YOUR PROPOSAL AFTER CONSIDERATION OF FREIGHT AND DISCOUNT FACTORS. THESE CHARGES WERE COMPUTED BY THE COGNIZANT TRANSPORTATION OFFICER FROM MARIANNA'S PLANT TO THE DESIGNATED POINTS IN ACCORDANCE WITH PART XII OF THE RFP, AND WE FIND NO BASIS EITHER IN YOUR PROTEST OR THE RECORD FOR QUESTIONING THE PROPRIETY THEREOF. VIEW THEREOF, IT WOULD APPEAR THAT THE MARIANNA PROPOSAL WAS PROPERLY EVALUATED AS THE LOWEST.

THE BASIC QUESTION RAISED BY YOUR FIRST CONTENTION IS, IN EFFECT WHETHER NOTE 1 IS A REQUIREMENT CONCERNING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS OR A REQUIREMENT AFFECTING THE RESPONSIVENESS OF PROPOSALS. IF THE REQUIREMENT GOES TO THE MATTER OF RESPONSIBILITY THEN COMPLIANCE THEREWITH MAY BE ANY TIME BEFORE A DETERMINATION AS TO THAT FACTOR IS MADE. ON THE OTHER HAND, IF THE REQUIREMENT DOES NOT GO TO THE MATTER OF RESPONSIBILITY, BUT TO THE MATTER OF RESPONSIVENESS, THEN FAILURE TO COMPLY THEREWITH AT THE TIME PROPOSALS ARE SUBMITTED WOULD REQUIRE REJECTION OF THE PROPOSAL. SEE 39 COMP. GEN. 655; 43 ID. 77. SINCE IT SEEMS CLEAR THAT THE PURPOSE OF THE REQUIREMENT WAS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE CAPABILITY OF A PROSPECTIVE CONTRACTOR TO PERFORM THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS, AND IS THEREFORE A REQUIREMENT CONCERNING RESPONSIBILITY, THE CRITICAL TIME FOR ACTUAL COMPLIANCE THEREWITH COULD BE AS LATE AS THE TIME SCHEDULED FOR COMMENCEMENT OF PERFORMANCE, AS LONG AS THE DETERMINATION OF RESPONSIBILITY IS BASED UPON A VALID FINDING THAT THE OFFEROR HAS THE ASSETS, COMMITMENTS AND WHEREWITHAL TO COMPLY THEREWITH. SEE 42 COMP. GEN. 532. THEREFORE, EVEN IF MARIANNA DID NOT IN FACT "POSSESS THE TOOLS, TEST EQUIPMENT AND/OR ENVIRONMENTAL CONDITIONS" AT THE TIME ITS PROPOSAL WAS SUBMITTED OR AT THE TIME OF THE SURVEY, THIS FACT ALONE WOULD NOT REQUIRE REJECTION OF ITS PROPOSAL.

WITH REGARD TO THE QUESTION OF RESPONSIBILITY, THE CONTRACTING OFFICER AND CONTRACT NEGOTIATOR MADE THE FOLLOWING DETERMINATION PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1:

"BASED ON THE FACILITY SURVEY CONDUCTED BY THE ORLANDO AIR FORCE CONTRACT MANAGEMENT DISTRICT, THE RECOMMENDED CONTRACTOR IS CONSIDERED A RESPONSIBLE PROSPECTIVE CONTRACTOR AS DEFINED BY ASPR 1-903.'

THE FCR REFERRED TO ABOVE WAS PREPARED BY ONE O. E. PERKINS, AIR FORCE INDUSTRIAL SPECIALIST, BASED UPON HIS EXAMINATION AND EVALUATION ON SEPTEMBER 14, 1965, OF MARIANNA'S FACILITIES, INCLUDING TOOLS, TEST AND OTHER EQUIPMENT, ENVIRONMENTAL CONDITIONS, MANUFACTURING AND WAREHOUSE AREAS, MATERIAL HANDLING DEVICES, AS WELL AS PRODUCTION, ENGINEERING AND FINANCIAL CAPABILITIES. SUBSEQUENT TO YOUR PROTEST AND IN RESPONSE TO THE REQUEST OF THE CONTRACTING OFFICER AND CONTRACT NEGOTIATOR, MR. PERKINS CONFIRMED HIS EARLIER FCR BY A TELEGRAM DATED OCTOBER 18, 1965, IN WHICH HE STATED,"THIS IS TO RECONFIRM AFFIRMATIVE FCR PERFORMANCE OF CAPABILITIES ON MARIANNA AIR MOTIVE CORP., MARIANNA, FLA. TO COVER CONTROLS SURFACES WITH FABRIC AND APPLY DOPE FINISHES AS REQUIRED BY T.O. 1-1A-11. MARIANNA HAS THE CAPABILITIES TO MEET THESE REQUIREMENTS.'

BY LETTER DATED DECEMBER 7, 1965, YOU QUESTIONED THE VALIDITY OF THE FCR INSOFAR AS IT INDICATED MARIANNA HAD THE ENVIRONMENTAL DOPE ROOM, READY FOR OPERATION, AT THE TIME OF THE SURVEY, AND INSOFAR AS IT FAILED TO INDICATE DELINQUENCIES AND UNSATISFACTORY REPORTS ON OTHER CONTRACTS. ASKED THE AIR FORCE FOR A FURTHER REPORT ON THESE ALLEGATIONS, AND WERE INFORMED AS FOLLOWS:

"PART II EVIDENCE OF EXISTENCE OF DOPING AND FABRIC CAPABILITY AS

OF DATE OF FCR:

"INQUIRY BY THIS OFFICE REVEALS THAT THE PAINTING FACILITY WAS CONSTRUCTED APPROXIMATELY 1952 BY MR. WILLIAM J. GRAHAM, GRAHAM AFB, MARIANNA, FLORIDA. THIS BUILDING WAS ORIGINALLY CONSTRUCTED FOR PURPOSES OF PAINTING IN REPAIR AND OVERHAUL OPERATIONS. ALL LIGHTING AND ELECTRICALS ARE OF EXPLOSION PROOF DESIGN. RECORDS OF THE BIRMINGHAM ARMY PROCUREMENT DISTRICT REVEAL THAT A PRE-AWARD SURVEY WAS PERFORMED ON THIS FACILITY 8 NOVEMBER 1963 LISTING BUILDING NR 2, CONCRETE BLOCK STEEL CONSTRUCTION WITH BUILD-UP ROOF, AS THE PAINT AREA. MARIANNA AIR MOTIVE HAS UTILIZED THIS BUILDING FOR PAINT OPERATIONS SINCE ITS ORIGINAL OCCUPANCY OF THE FACILITIES AT THE MARIANNA MUNICIPAL AIRPORT. THE PAINT BUILDING IS DIVIDED INTO TWO SEPARATE AREAS. THE DOPE ROOM FACILITY IS SEPARATED FROM THE OTHER PORTION OF THE BUILDING BY A CONCRETE BLOCK WALL. EXPLOSION PROOF LIGHTS AND ELECTRICALS WERE IN THIS ROOM ON 17 SEPTEMBER 1965. THE CONTRACTOR WAS UTILIZING THE ROOM AT THAT TIME FOR STORAGE. IN ORDER TO BRING THIS ROOM TO THE REQUIREMENTS OF T.O. 1-1A-11, THE FOLLOWING ADDITIONS OR ALTERATIONS WERE REQUIRED:

A. INSTALLATION OF EXPLOSION PROOF EXHAUST FAN,

B. INSTALLATION OF AIR FILTER,

C. INSTALLATION OF ELECTRIC GROUND WIRE SYSTEM AND

D. RE-DUCTING OF HEATING.

"THE TOTAL COST OF LABOR AND MATERIAL FOR THESE ADDITIONS OR ALTERATIONS IS ESTIMATED AT $250.00. TEMPERATURE AND HUMIDITY ARE CONTROLLED THROUGH FORCED-AIR HEATING SYSTEM WITH A SEPARATE BLOWER DUCTED INTO THE DOPE ROOM. THE GOVERNMENT PERSONNEL PERFORMING THE FCR CONSIDERED THE DOPING AND FABRIC FACILITY SUBSTANTIALLY COMPLETE AT THE TIME OF THE FCR, SATISFYING THE REQUIREMENTS OF ASPR 1-903. THIS OFFICE CONCURS IN THIS CONCLUSION. THE CONTRACTOR HAD NO NECESSITY FOR THE ABOVE MENTIONED ALTERATIONS AND THEREFORE DID NOT ACTUALLY ACCOMPLISH THE ALTERATIONS UNTIL THE INPUT OF REPAIR PARTS REQUIRING A DOPING OPERATION.

"* * * IT WAS ALSO REPORTED THAT A REVIEW OF THE PERFORMANCE RECORDS AT THIS INSTALLATION REVEAL NO DELINQUENCY OR UNSATISFACTORY PERFORMANCE REPORTS HAVE BEEN SUBMITTED BY THE COGNIZANT ADMINISTRATIVE FIELD ACTIVITY.'

FROM THE FOREGOING, IT WOULD APPEAR THAT ALTHOUGH MARIANNA DID LACK CERTAIN EQUIPMENT REQUIRED BY T.O. 1-1A-11, THE DEFICIENCIES WERE MINOR AND CONSIDERING ITS CAPABILITY TO MAKE THE NECESSARY ADDITIONS, A NEGATIVE FCR WAS NOT REQUIRED. 42 COMP. GEN. 532.

THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH DETERMINATION SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED. THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH DECISIONS UNLESS THERE IS CLEARLY NO SUBSTANTIAL BASIS FOR THEIR ACTION OR EVIDENCE OF BAD FAITH. IN VIEW OF THE RECORD PRESENTED IN THIS CASE, AS RECITED ABOVE, WE WOULD NOT BE JUSTIFIED IN TAKING EXCEPTION TO THE AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, OR TO THE AWARD AS MADE.